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COVID-19: Substituting Statutory Holidays in BC

The next statutory holiday in BC is tomorrow, Good Friday, on April 10. This is the first statutory holiday to occur during the peak of the COVID-19 crisis and many may have lost sight of it given current world events, particularly if your business is in a partial state of shut-down. There is also the possibility that this outbreak may continue to affect business operations during other upcoming statutory holidays.

In the normal course of business, employers must comply with the requirements of the BC Employment Standards Act (the "Act") in terms of providing eligible employees with statutory holiday pay. However, in these times some employers may be seeing significantly reduced operations and a need to cut operating costs wherever possible. Alternatively, some employers may be finding that it is more difficult to adequately staff operations due to employees being absent for sick or other leaves, and may be concerned about paying employees a significant amount of statutory holiday pay if they are required to work on the statutory holiday.

Under section 48 of the Act, it is possible for an employer to substitute another day off for a statutory holiday. The employer and employee or a majority of the employees must agree to the substitution, and a written record of the agreement must be kept. There is no express limit in the legislation on how far in the future the substitute day can occur.

The practical effect of substitution is that the obligations regarding statutory holiday pay can be deferred until a later day. For example, the employer and employee could agree to substitute Tuesday, August 4 for the statutory holiday on Good Friday. Employees who must work on Good Friday would receive their regular pay. They would be entitled to their paid day off-or average day's pay plus statutory holiday pay if they work on the substitute day-on Tuesday, August 4 instead.

This provision may significantly benefit employers looking for ways to defer costs at this time so that they can best weather this health and economic crisis. We encourage any employers considering such an agreement to contact our labour and employment lawyers for advice on ensuring that substitution of a statutory holiday is done in compliance with the Act.

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